Disclosure and Discovery in Supreme Court Family Law Proceedings

The discovery and disclosure process is all about learning — or "discovering" — the other party's case. It's about getting information and documents from the other party that are relevant to the legal issues in a court proceeding, including the information and documents that the other side intends to use to prove their case at trial.

As a party in a BC Supreme Court action, you also have an obligation to provide the other party with any documents that are relevant to any orders that you or the other party are asking the court to make. Check the Form F3 Notice of Family Claim and the Form F5 Counterclaim to remind yourself about what orders are being asked for.

The discovery and disclosure process is crucial because it allows you to gather the information necessary to evaluate the strengths and weaknesses of both your case and the opposing party's case. This evaluation not only helps you prepare for interim applications and an eventual trial, but also lets you gauge your chances of success. In addition, it positions you to respond effectively to any settlement offers from the other party and to craft your own. As you begin discovery and disclosure, it's wise to consult a lawyer, who can advise you on what must be disclosed to the other party, what you need to prove in court for your case to succeed, and what information to look for in the other party's case. If you do not have a lawyer, and your household income meets the eligibility criteria, ask a duty counsel or call the Family LawLINE service who may provide some advice.

Introduction

In Canada, we don't litigate with cards up our sleeves. Instead, all of everyone's cards are on the table face up. This may not make a lot of sense right away, partly because of what we see in American movies and televisions shows, but the point is to cut through the bullshit to give each court proceeding the best possible chance of settling without having to go through a trial. As Justice Punnett said, in the 2013 BC Supreme Court case of J.D.G. v J.J.V., 2013 BCSC 1274, "the goal of proper disclosure is to enable the parties to resolve their dispute." Justice Fraser was even more blunt, in his 1994 decision in a BC Supreme Court case called Cunha v Cunha, 1994 CanLII 3195 (BC SC):

"Non-disclosure of assets is the cancer of matrimonial property litigation. It discourages settlement or promotes settlements which are inadequate. It increases the time and expense of litigation. The prolonged stress of unnecessary battle may lead weary and drained [parties] simply to give up and walk away with only a share of the assets they know about, taking with them the bitter aftertaste of a reasonably-based suspicion that justice was not done."

Providing relevant information in advance of trial makes it possible to settle a dispute without appearing in court. Hearings and trials are expensive, and not just for the parties. The government and even the court itself has an interest in encouraging settlement and reducing the administrative burden of holding hearings and trials in every family law matter. The more each party understands their own case's strengths and weaknesses and the other party's case's strengths and weaknesses, the greater the chance that the two sides will find a reasonable compromise. The law makers and the court administration know this.

As a result, the Supreme Court Family Rules and other regulations and legislation — notably the Family Law Act, the Divorce Act, and the Child Support Guidelines — are chock full of rules intended to speed the discovery and disclosure process, and automate as much disclosure as possible.

In addition to the disclosure requirements and expectations that are automatically placed on the litigants, there are also rules that allow a party to make a request for documents and information from the other party. You'll also learn about these in this section of the chapter. There are even rules that let a party get documents and other information from people who aren't even involved in the court proceeding!

The discovery and disclosure process is a critical part of the litigation process that the court takes very, very seriously. This is why there are so many rules around this part of the process. In this section we will use the term "disclosure" to refer generally to the process of discovery and disclosure, and below we will discuss:

1. The laws around document disclosure: what the Supreme Court Family Rules and legislation tell you about what documents you and the other party must automatically provide, and how you or the other party can get such disclosure.
2. The court forms for giving and getting document disclosure: what are the forms and documents you need to complete to comply with the automatic document disclosure requirements, how to complete them, and how to get more documents form the other party or from non-parties.
3. Pre-trial discovery: what are the court processes you can use to get sworn information from the other party and their witnesses before trial, so you can prepare for trial.

Laws for disclosure in BC Supreme Court

The Supreme Court Family Rules

Some disclosure requirements are simply automatic under the Supreme Court Family Rules. These requirements are triggered when a party decides to defend a family law court proceeding, and they do not require a special request or otherwise asking nicely.

Rule 5-1: Financial Statements

Rule 5-1 talks about financial disclosure, and includes directions for how and when parties must share financial information, especially in the Form F8 Financial Statement which is a very important document in this context. You will read more about the Form F8 below, but here is a quick introduction to the rule.

Whether or not you need to file a Form F8 Financial Statement depends on the orders being asked for, and who is asking for them.

Parties asking for an order: If you are asking for orders about division of property and debt, spousal support, or (in some circumstances) child support, you must file and serve a Form F8 Financial Statement within 30 days of filing your Form F3 Notice of Family Claim or Form F5 Counterclaim. If children primarily reside with you (i.e. not a split or shared parenting arrangement) and you are asking for child support in the basic table amount set by the Child Support Guidelines only (i.e. not seeking an order about section 7 expenses), then you do not need to file a Form F8. More often than not, however, the financial circumstances of a party — what they earn, what they own, etc. — is important information that the other party and the court needs to know.

Here are some examples of when you need to file a Form 8 Financial Statement:

• If you are asking for spousal support
• If you are asking for division of property or debt
• If you are asking for a child support order and there is a shared parenting arrangement

In these situations you would need to provide the other side with your Form F8 Financial Statement within 30 days of filing your Form F3 Notice of Family Claim (if you are the claimant in the proceeding), or your Form F5 Counterclaim (if you are the respondent).

Parties defending against another party's request for an order: The party who is asked to pay spousal support or child support (in all circumstances), or who is responding to another party's claims for division of property and debt must file and serve a Form F8 Financial Statement within 30 days of being served with the other party's Form F3 Notice of Family Claim (or Form F5 Counterclaim). Note that for child support claims, the defending party must always complete a Form F8.

Because the purpose of the rules around financial statements is financial transparency, the parties are often required to update their Form F8 Financial Statements, or complete them in greater detail. If either party receives a Form F8 Financial Statement from the other side which is too vague, that party can ask the other side that prepared it to provide more details, and Rule 5-1(13) addresses this. Financial circumstances can change over time too, and litigation is not always the swiftest process. Parties have to keep the information in their Form F8s up-to-date and accurate, and Rule 5-1(15) spells this out.

Rule 9-1: List of Documents

Rule 9-1 of the Supreme Court Family Rules governs the discovery and inspection of documents in family law cases, requiring each party to disclose and serve a list of relevant documents, including those they intend to rely on at trial, while also allowing parties to request additional disclosures, challenge claims of privilege, inspect and copy documents, and seek court orders for production when necessary. For most parties, document disclosure starts by listing their own relevant documents. This is what the Form F20 List of Documents is for. You will read more about the Form F20 below, but we will introduce the rule that governs it here.

Rule 9-1(1) says that you must prepare a list of all documents that are or have been in your possession or control, and specifically those documents that could, if available, be used by you or the other party at trial to prove or disprove a material fact. If you plan to use a document at trial to support your case, you must list it. Even if there are documents that you do not intend to use, such as ones that do not support your case, you must list those. And in case you are wondering, "document" has an extended meaning and includes paper documents and electronic records, but also a photograph, film, recording of sound, and any information recorded or stored by means of any device.

Cases without a counterclaim: If the respondent is not filing a Form F5 Counterclaim, both the claimant and respondent must serve their Form 20 List of Documents on the other party within 35 days of the respondent's Form F4 Response to Family Claim Form F4 being served on the claimant. For example, if you are the respondent, you have to provide the claimant with your Form F20 within 35 days of delivering your Form F4, and the claimant has to provide you with their form F20 within the same timeline. Note that the Form F20 List of Documents does not get filed in court.

Cases with a counterclaim: If the claimant received a Form F5 Counterclaim, and not just a Form F4 Response to Family Claim, and if the claimant has not already served their Form F20 List of Documents on the respondent, the claimant has to serve the respondent with their form F20 within 35 days of delivering their Form F6 Response to Counterclaim.

Rule 9-1: Demanding further documents and updating document lists

The Supreme Court Family Rules' document disclosure process has been described as "two-tier". The first tier consists of all the disclosure requirements that are automatic under the rules:

• Form F8 Financial Statements are filed and served along with the various financial documents.
• Form F20 List of Documents are prepared and served, which focuses on disclosing documents that are most relevant to the orders sought in the pleadings, and which specifically prove or disprove material facts that a judge will need to decide in order to make or deny these orders. (And the form also requires parties to list any documents they plan to refer to at trial, whether or not they relate to a material fact.)

As more documents emerge, as financial situations change, or if pleadings are amended to include requests for other kinds of orders, the automatic disclosure requirements continue to apply. Parties must keep their Form F8 Financial Statement (see Rule 5-1(15)), and their Form F20 List of Documents (see Rule 9-1(6)) up-to-date.

If either party receives a Form F20 List of Documents which they believe is incomplete (i.e. it didn't include documents or a class of documents that are relevant to a material fact), that party can demand the other party to amend their list of documents and provide it once again. This is what Rule 9-1(7) is says. Similarly, for Form F8 Financial Statements, a party may demand more information under Rule 5-1(13) if the other side's form lacks sufficient information.

The hope of the court is that the parties' disclosure needs will be satisfied in the majority of cases at this first tier. Not every case goes that smoothly, however.

The second tier of document disclosure is for parties who seek documentary evidence that goes beyond proving or disproving a material fact. Parties don't automatically list documents that "relate to any or all matters in question in the family law case", and that's because the Supreme Court Family Rules don't require them to. It's also because less relevant documents are usually less useful to a judge, and the people who wrote the rules know that.

Nonetheless, Rule 9-1(8) allows you to demand documents (or classes of documents) of lesser relevance if:

1. they are actually within the other party's possession, power or control,
2. you can identify a good reason why they should be disclosed, and
3. you can identify what kinds of documents you are demanding with reasonable specificity.

A demand under Rule 9-1(8) must be in writing, and it must meet the conditions just mentioned. The other party receiving this demand has 35 days from that point to either list the additional documents, or provide an explanation as to why they cannot list additional documents (see Rule 9-1(9)).

If you have demanded additional documents under Rule 9-1(7) or (8) and are not satisfied with the other side's response, you can apply to court for production of documents under Rule 9-1(10) after 35 days.

Before making an application under Rule 9-1(10), however, be aware of key principles the courts consider in applications under this rule:

• Parties should engage in discussion and try to resolve the issue before embarking on an expensive court application. An applicant should be prepared to show how they attempted to have a dialogue with the other side before resorting to court.
• An applicant should carefully go through documents already disclosed and be able to explain why more is necessary before they file an application.
• An applicant seeking further document disclosure under Rule 9‑1(8) must show, with some evidence, that the documents exist and may be relevant. Examination for discovery or references within already-produced documents can help establish this.
• The courts do not like "fishing expeditions". Letters of demand that indicate a party is merely exploring for possible documents may not be enough to get a court order if those documents are not clearly identified or confirmed to exist.
• A court will not order disclosure of documents that do not exist or are not in the party’s possession, power, or control.
• Seeking documents for the sole purpose of challenging the other side's credibility is not good enough to get an order for their disclosure.
• Document disclosure must be proportionate to the importance and complexity of the issues in dispute. Basic disclosure under Rule 9‑1(1) will be sufficient in most cases, and additional disclosure under Rule 9‑1(8) requires justification and must meet the proportionality test.

Cases like Parise v. Adelson, 2021 BCSC 891, and Mossey v. Argue, 2013 BCSC 2078 are useful to review. They warn against applying for documents merely out of mistrust and suspicion that the other side is hiding something. In Etemadi v. Maali, 2021 BCSC 1003, both parties made sweeping demands for further disclosure, and not many were successful since the court suspected a "fishing expedition".

Should you make an application following a demand for broader disclosure, make sure your demand explained specific and focused reasons in the first place, rather than simply suspicions. Pin down the specific documents that appear to be improperly withheld. While Rule 9-1(8) is more broad, it still demands a plausible connection between what is requested and the issues in the pleadings.

Disclosure required by legislation

Some legislation and regulations contain specific disclosure requirements. While there are many ways that disclosure requirements overlap for claims made under the Divorce Act and the Family Law Act, we will address them separately while also explaining how the Child Support Guidelines are very important in both scenarios.

The Divorce Act and Child Support Guidelines

Section 7.4 of the Divorce Act demands that parties (and also anyone subject to an order under the act) provide "complete, accurate and up-to-date information" when required to under the act itself.

Disclosure is not limited to financial documents. Disclosure should include documents and information relevant to any of the orders a party has requested under the Divorce Act, such as divorce, parenting, child support, and spousal support. What you disclose depends on what orders any of the parties are requested in the BC Supreme Court action.

The details about what kind of "information" is relevant to an order for child support are listed in section 21 of the Child Support Guidelines (the "Guidelines"), which is a regulation under the Divorce Act, which states that:

(1) A spouse who is applying for a child support order and whose income information is necessary to determine the amount of the order must include the following with the application:

(a) a copy of every personal income tax return filed by the spouse for each of the three most recent taxation years;

(b) a copy of every notice of assessment and reassessment issued to the spouse for each of the three most recent taxation years;

(c) where the spouse is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not provided by the employer, a letter from the spouse’s employer setting out that information including the spouse’s rate of annual salary or remuneration;

(d) where the spouse is self-employed, for the three most recent taxation years

(i) the financial statements of the spouse’s business or professional practice, other than a partnership, and

(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the spouse does not deal at arm’s length;

(e) where the spouse is a partner in a partnership, confirmation of the spouse’s income and draw from, and capital in, the partnership for its three most recent taxation years;

(f) where the spouse controls a corporation, for its three most recent taxation years

(i) the financial statements of the corporation and its subsidiaries, and

(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length;

(g) where the spouse is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s three most recent financial statements; and

(h) in addition to any income information that must be included under paragraphs (c) to (g), where the spouse receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information.

Summary of Disclosure Requirements under Section 21 of the Child Support Guidelines

Scope	Required Information	Timeframe
General Requirements	Personal income tax returns and notices of assessment and reassessment	Last 3 years
Employee	Most recent statement of earnings (including overtime) or employer letter confirming salary/remuneration details	Most recent year
Self-Employed (Business or Professional Practice)	Financial statements of business/professional practice and breakdown of salaries, wages, management fees, or other payments to non-arm's length parties	Last 3 years
Partner in a Partnership	Confirmation of income, draw, and capital in the partnership	Last 3 years
Corporation Controller	Financial statements of corporation and subsidiaries and breakdown of salaries, wages, management fees, or other payments to non-arm's length parties	Last 3 years
Beneficiary under a Trust	Trust settlement agreement and trust's financial statements	Last 3 years
Other Sources of Income	Statement or letter from authority confirming income from employment insurance, social assistance, pensions, workers' compensation, disability, or other sources	Current year

Section 21(2) of the Guidelines requires that people who are being asked to pay child support also provide the above information.

Under section 25 of the Guidelines, each person who is obliged to provide this information is under a continuing obligation to provide it, and must do so "on the written request of the other spouse" not more than once each year after a child support order is made. The potential penalties for not providing this information are found in sections 22, 23 and 24 of the Guidelines, and include the judge:

1. Making orders that the party provide the required information.
2. Making an adverse inference against the party who failed to provide the required information. An adverse inference is a conclusion that a court may draw against a party who fails to present evidence that is within their control. It typically means the court assumes the missing evidence would have been unfavorable to that party. This can happen, for example, if a party refuses to disclose documents or destroys evidence. A typical example is where a judge finds that a party is hiding evidence about how much they actually earn. The judge could then make an adverse inference against that person, and assume that the party earns more than they claim to.
3. Deciding that the party who failed to provide the required information is in contempt of court. Being in contempt of court means that the party has failed to do what the judge has ordered, and the court can punish the party with a fine or even jail time.
4. Awarding costs in favour of the other party. This would mean that the non-disclosing party has to pay some of the legal expense incurred by the other party.

Often, court orders respecting child or spousal support will also include terms setting out timelines for the disclosure of certain information or documents between the parties.

The Family Law Act and Child Support Guidelines

Section 5 of the Family Law Act is similar to section 7.4 of the Divorce Act. This section says that:

(1) A party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute.

(2) A person must not use information obtained under this section except as necessary to resolve a family law dispute.

That last line, subsection 5(2), is pretty important. It's there to encourage people to comply with their obligation to produce documents and information in the discovery and disclosure process by letting them know that the person they give their documents and information is required to keep those documents and information confidential. Those documents and information may not be used for any purpose except for the family law dispute, which means that they can't be copied and be given to relatives and coworkers, they can't be stapled to telephone poles, they can't be posted on Facebook or Instagram, they can't be put up on someone's website, and they can't be emailed to journalists. Documents and information that are produced in the discovery and disclosure process are to be kept confidential!

Also, the Family Law Act goes a bit further than the Divorce Act does. Section 212(1) of the Family Law Act says the court may make an order requiring a party to disclose documents and information at any time in a court proceeding. And section 212(3) says:

(3) A person must not disclose information obtained under an order made under this section except

(a) as necessary to resolve a family law dispute, and

(b) in accordance with the order.

The hammer shows up in section 213, which lists the penalties a court may order against someone who fails to comply with either an order made under section 212 or a disclosure obligation in the Supreme Court Family Rules. This also includes producing documents and information that are "incomplete, false or misleading":

(1) This section applies if a person

(a) fails to comply with

(i) an order for disclosure made under section 212, or

(ii) a requirement to disclose information in accordance with the Supreme Court Family Rules or the Provincial Court Family Rules, within the time or in the manner required by the order or Rules, or

(b) provides information that is incomplete, false or misleading.

(2) In the circumstances set out in subsection (1), the court may do one or more of the following:

(a) make an order under section 212;

(b) draw an inference that is adverse to the person, including attributing income to that person in an amount that the court considers appropriate, and make an order based on the inference;

(c) require a party to give security in any form that the court directs;

(d) make an order requiring the person described in subsection (1) to pay

(i) a party for all or part of the expenses reasonably and necessarily incurred as a result of the non-disclosure of information or the incomplete, false or misleading disclosure, including fees and expenses related to family dispute resolution,

(ii) an amount not exceeding $5 000 to or for the benefit of a party, or a spouse or child whose interests were affected by the non-disclosure of information or the incomplete, false or misleading disclosure, or

(iii) a fine not exceeding $5 000;

(e) make any other order the court considers appropriate.

That's a heavy hammer.

In J.D.G. v J.J.V., Justice Punnett said that "Factors relevant to the imposition of a penalty [for failure to make disclosure] include the reasons, or lack thereof, for the failed disclosure or compliance, whether the failure was excusable, whether there had been a flagrant disregard of the court process, or whether the disclosure was deficient."

The Child Support Guidelines apply to a family law dispute involving the Family Law Act (see section 8 of the Family Law Act Regulation). That includes the person's obligation to give to the other party financial information under section 21 of the Child Support Guidelines. It also includes the penalties for not providing this information under sections 22, 23 and 24. In short, it's safe to assume that all of the Child Support Guidelines apply to court proceedings under the Family Law Act, just as they do to court proceedings under the Divorce Act.

And, once again, please remember that disclosure is not limited to financial documents. Disclosure should include documents and information relevant to any other matter that is part of the family law dispute under the Family Law Act.

Court forms for disclosure in BC Supreme Court

Form F8 Financial Statement

The Supreme Court Family Rules contains a specific form for financial disclosure, called a Form F8 Financial Statement. Here we will call it the Form F8 for ease of reference. These are very important in family law proceedings. As noted above, Rule 5-1 of the Supreme Court Family Rules discusses the form and its various parts.

Overview of the Form F8

In a Form F8 you provide the court and the other party with a picture of your finances. The parts about income (and in many cases expenses) are critical for determining child support and spousal support, and — unless there is more complete evidence in the form of appraisals or other independent documents that prove the value of real estate and other property — the part of the form relating to assets and debts may be used by the court to determine the value of an asset or the amount owing on a debt. It's important to take care when completing this form. Form F8s are sworn or affirmed by the party who prepares it, meaning they are giving their word that the information being provided is honest and accurate. Someone who swears or affirms a Form F8 one can find their credibility being challenged if the numbers don't make sense — overblown or understated — if critical information is omitted, or if there are outright fabrications in the statement.

The Form F8 has introductory pages where you will find instructions and a space to list any significant changes that you may anticipate. It has various parts, and you need to follow the form's instructions to know which ones to complete:

1. Part 1 - Income
2. Part 2 - Expenses
3. Part 3 - Property and Debt
4. Part 4 - Extraordinary Expenses
5. Part 5 - Undue Hardship
6. Part 6 - Income of Other Persons in Household

Again, which parts you complete depends on what orders are being asked for in the Form F3 Notice of Family Claim or the Form F5 Counterclaim.

The Form F8 is one of the most important documents that you and the other side will file in court. This is because judges rely on the critical information it contains when deciding on orders.

For example, parts 1 and 2 (income and expenses) are critical for determining child support and spousal support. Part 3 (property and debt) is crucial for establishing the value of what the parties own and what they owe, but it also tells the court if the party who completes it has any excluded property, or if they got rid of property in the last two years (since a court may decide one party should compensate the other for disposing of family property.)

Who needs to complete a Form F8

If the Form F3 Notice of Family Claim or Form F5 Counterclaim ask for orders about spousal support, child support (where this includes a claim for section 7 expenses, or in shared parenting arrangements), or the division of property, pensions, or debt, both parties must prepare and file a Form F8.

If a party is only asking for child support in the table amount (without section 7 expenses and for none of the other issues), and if the children reside primarily with that party, they do not need to file a Form F8 themselves. The other party (the would-be payor) is required to file one, however. The Form F8, has "Instruction for Completion" at page 1, which tells you in more detail if you have to complete a Form F8, although these instructions are just a summary of what the Supreme Court Family Rules require.

Most family law disputes in the BC Supreme Court require that you file a Form F8, so if you are uncertain whether you need to prepare and file one in court, ask a duty counsel or call the Family LawLINE service.

How do you complete a Form F8

As mentioned above, the Form F8 begins with an introductory section where you can outline any expected changes (ones that might be significant) to the information provided in the financial statement. This allows you to highlight anticipated adjustments, such as upcoming changes in income, expenses, or assets, that might not yet be reflected in the detailed sections of the form.

Look to the first page of each part of the Form F8 to assess whether you need to complete that part, and what information (especially other documentation) you need to provide.

Leave blank any parts in the Form F8 that do not apply to you.

Here is a look at what each part of the form asks you to provide:

Summary of Form F8 Parts

Part Number	Title	Description
Part 1	Income	Sets out what you expect your gross income will be for the year in which you are completing the form. You need to provide an annual amount, likely requiring you to forecast rather than enter income to date. Gross income is before tax deductions. If income is stable, use line 1500 of your most recent tax return; otherwise, use your most recent earnings statement to estimate annual income. This part also requires listing all income sources and adjustments.
Part 2	Expenses	Records your monthly expenditures for you and anyone in your household. If you share expenses, indicate the portion you pay. Annual expenses should be divided by 12 for monthly reporting (e.g., $1,200 annual property insurance = $100/month).
Part 3	Property	Requires a complete list of all assets and debts owned by each party, indicating ownership. Includes acquisition details, real estate (address, legal description, BC Assessment value), bank accounts (institution, account number, balance), investments, debts (mortgages, credit lines, credit cards), and vehicle details (make, model, year, value). Also includes property exclusions and disposals within the past two years.
Part 4	Special and Extraordinary Expenses	Lists all special or extraordinary expenses incurred for each child individually. These expenses should also be included in Part 2 under "children."
Part 5	Undue Hardship	Completed only if making an undue hardship claim under section 10 of the Child Support Guidelines. This part requires explanation and relevant details of hardship factors. Meeting the undue hardship threshold is difficult. Refer to the Child Support chapter for legal context and examples.
Part 6	Income of Other Persons in Household	Completed when an undue hardship claim is made. Requires listing household members and their gross annual income, with an explanation of their relationship to you. Roommates who rent from you or vice versa are generally not considered household members. Rental income from roommates should be reported in Part 1.

What other documents do you attach to a Form F8

Each party must attach a number of important documents to their Form F8. Read the introductory pages of part 1 in the Form F8, especially "B. Documentation supplied." It tells you what documents to provide depending on your situation. Here are some common documents you may need to attach to your Form F8:

• the last three years of your tax returns (copies of the complete T1 general income tax and benefit return that was sent in to the CRA, not just tax return summaries or information),
• all notices of assessment and reassessment you received for the last three tax years,
• your three most recent paystubs, which should include your earnings to date for the year (if you are employed),
• your most recent WCB statements, social assistance statements, EI statements, or CPP disability statements (if you are not working),
• business records like financial statements and corporate income tax returns, if you own a business or company, and
• the most recent BC Assessments for all real property you own (listed in part 3 of the Form F8).

If you are self-employed, in a business partnership, control a company, or have an interest in a trust, some other required documents commonly include:

• financial statements of your business or professional practice (if you are self-employed)
• confirmation of income, draw, and capital in the partnership (if you are a partner in a business partnership)
• financial statements of corporation and subsidiaries (if you control a company)
• breakdown of salaries, wages, management fees, or other payments to non-arm's length parties (if you are self-employed, a partner in a partnership, or control a company)
• trust settlement agreement and trust's financial statements (if you are a beneficiary under a trust).

Some parties will have their accountant help them complete the Form F8, especially if the party has a business (whether self-employed, partnership, or a company), but usually you will want to speak to a lawyer about completing your Form F8 to make sure you are providing the most accurate information you can provide.

Filing your Form F8

There is no fee for filing your Form F8, but the registry will charge you for swearing or affirming your Form F8 if you have not done so before taking it into court for filing. The registry will keep the original, so make at least two additional copies (one for you and one to give to the other party). When you bring your Form F8 to the registry for filing, bring all copies (which should include copies of all the additional documentation and attachments that apply), and the registry should stamp the first page of each copy, and return them back to you.

Serving your Form F8 on the other party

Rule 5-1(11) of the Supreme Court Family Rules tells you when to file and serve your Form F8 (see the heading earlier in this section on "Rule 5-1: Financial Statements"). Basically, the rules say to serve the Form F8 within 30 days if:

• you served the other party with a Form F3 Notice of Family Claim or a Form F5 Counterclaim, and the orders sought require a Form F8, or
• you received a Form F3 Notice of Family Claim or a Form F5 Counterclaim, and the orders sought require a Form F8.

If you live outside Canada or the US, however, the timeline changes to 60 days.

The court can vary the above timelines, but you should ask the other party for more time if you need it first. You may not need to apply to court. Parties are free to agree to a longer timeline, and reasonable requests for an extension are routinely agreed to. Also, the courts will generally honour any agreement extending time for filing a Form F8. If you cannot get the agreement of the other party, the court will usually also grant an extension if you apply for one as long as the other party is not hurt by an extension.

Form F20 List of Documents

The Form 20 List of Documents is essential to the disclosure process under the Supreme Court Family Rules, but it is also a very handy tool to start organizing the evidence in your case. Here we will call it the Form F20 for ease of reference. Rule 9-1 sets out requirements for production and inspection of documents in a family law proceeding, and the Form F20 is an important tool for taking advantage of your disclosure entitlements, while meeting your own disclosure obligations under the rules. While the Form F20 and Form F8 do not satisfy all of your disclosure entitlements and obligations in family law litigation, they are the first important steps, and the foundation of disclosure in BC Supreme Court cases.

Overview of the Form F20

The Form F20 contains four parts:

1. Part 1 - Documents That Are or Have Been in the Listing Party's Possession or Control and That Could Be Used by Any Party at Trial to Prove or Disprove a Material Fact
2. Part 2 - Other Documents to Which the Listing Party Intends to Refer at Trial
3. Part 3 - Documents That Relate to a Matter in Question in the Action
4. Part 4 - Documents for Which Privilege From Production Is Claimed

Listing documents in Form F20 comes early in the litigation process. Unlike the Form F8 Financial Statement, however, the Form F20 and does not require attaching actual documentation. Exchanging documents is a separate step.

That said, as you list your documents you should be making preparations to make the documents available for inspection by the other party. Usually, parties will prepare their respective Form F20s, and agree to exchange electronic copies of the documents. Providing copies of the documents replaces the need to coordinate inspection by the other party, and it makes it easier for all concerned.

Who needs to complete a Form F20

Rule 9-1 of the Supreme Court Family Rules requires that every party must prepare this form and list their documents.

What do you need to list in a Form F20

The pleadings guide the disclosure obligations of all parties. Review your own and the other party's pleadings, and examine them closely to identify all of the orders that a judge is being asked to consider. That includes orders you are asking for, and ones the other side is seeking. This requires you to carefully read:

1. the Form F3 Notice of Family Claim, and
2. the Form F5 Counterclaim (if there is one).

You are developing a clear picture in your mind of the orders that are at stake. For each requested order, think about what factual conclusions a judge must reach to justify granting that order. Now think about the factual conclusions a judge might need to reach to deny the order. Some facts are highly important to prove, for example that the children live with you over 60% of the time, or that you had $100,000 in savings before you and your ex even got together. The court and the other side need to know what documents can prove these important facts (and what documents might tell a different story).

There will be documents and records from your life that either support or invalidate these factual conclusions. These are the documents you must list because they have the highest degree of relevance to your — and the other side's — cases.

When you down to prepare your Form F20 List of Documents, you are going to list:

1. documents in your possession or control that could be used (by any party) to prove or disprove a material fact during a trial,
2. documents that used to be in your possession or control that could be used (by any party) to prove or disprove a material fact during a trial, and
3. documents you intend to refer to during a trial.

A material fact is any fact that is essential for a judge to resolve in order to decide the main issues before the court. As you can see from the first two points in the list above, the rules prioritize listing documents that could prove or disprove any material fact (even if they are no longer in your possession or control).

By contrast, a collateral fact is a fact that is less relevant to a judge, but might be relevant in the broader context. These might come up in a case, but they are not essential for a judge to decide in order to make an order. A common example is a collateral fact related to credibility. The rules around Form F20 do not, as a starting point, require you to disclose documents that prove or disprove a collateral fact, and you do not need to list every document relating to every matter in question. At the same time, you might anticipate referring to documents at trial which establish facts that could be helpful to your case or damaging to the other party's case. Perhaps you have old text messages showing that the other party was comfortable lying to their employer about being sick, which you anticipate using at trial to question their credibility. The third point in the above list covers these kinds of situations. Even if the document doesn't go to a core question (like whether they are lying about their need to relocate with a child for work), it needs to be listed if you anticipate using it to impeach that person's credibility during trial.

Carefully read Rule 9-1 of the Supreme Court Family Rules. Knowing which documents are truly material, and which documents are not material but might be useful later on, helps you prepare the Form F20 more effectively and efficiently, so you can focus on what the judge really needs to see.

Material Fact Examples

Order claimed	Material facts	Documents to list
Spousal support	The claimant's and the respondent's incomes are material facts, as well as their expenses. Each party must list documents that show how funds received are income, and how the money they spend is for expenses.	Income tax returns Pay stubs Bank records Credit card statements Purchase receipts
Property division	Both the respondent's and the claimant's property and debts are material facts, along with the circumstances (timing and reason) in which each property and debt were acquired. Each party must list documents that show the value of these assets and liabilities, and also those that prove when, how, why, and by whom they were acquired.	Agreements for purchase and sale of a home Conveyancing records Gift letters Renovation receipts Mortgage statements Insurance payout records RRSP statements
Parenting time	The court may only consider the best interests of the child when making orders for parenting time, so material facts could relate to the 10 factors set out in s. 37(2) of the Family Law Act. For example: A material fact related to a child's health and emotional well-being could be their mental health status and need for counselling. If the child is older, and knowing their views is appropriate, a material fact could include whether they expressed a clear view about who they want to spent time with and why. If being with one parent would nurture the child's relationship with their grandparent, the depth and quality of their bond with that grandparent could be a material fact.	Therapy records and parenting logs showing who attends medical appointments View of the Child Report Family photos or videos

And just to be clear, materially relevant documents are not limited to those that help your case. If the question is "could this document help prove facts essential to my case?" — and if the answer is "yes" — then list it. If the question is "could this document hurt my case and help prove the other side's version of what really happened?" — if the answer is "yes" — then also list it. Whether it's documentary evidence for your cause or against your cause, if it's a materially relevant document you need to list it.

You are expected to list documents within your "possession or control", but also ones you know exist but no longer possess, or which you don't have the authority to obtain. These might be documents that you had to leave behind when you moved out, medical records that are in control of a hospital, or any number of other situations. Form F20 provides a clear space to indicate if you are no longer in possession or control. In some cases, the court might order them to be produced for inspection — even if that requires ordering a third party to produce them — but for now you just need to list them.

Lastly, understand that the term document is not restricted to paper documents. Rule 1-1(1) of the Supreme Court Family Rules defines the term:

"document" has an extended meaning and includes a photograph, film, recording of sound, any record of a permanent or semi-permanent character and any information recorded or stored by means of any device.

How do you complete a Form F20

As noted, the form has four parts, each one consisting of a table that has five columns for entering basic information about each document in that part, namely:

1. The number you're assigning to the document in that part
2. Date of the document
3. Document description
4. A fourth column to indicate:
   • (in Parts 1-3) a check mark if the document is no longer in your possession or control
   • (in Part 4) a statement about the grounds of privileged being claimed for the document
5. A final column used only when the document is being added later (through an amended List of Documents)

Here are some starting notes to consider:

• Documents are typically listed chronologically.
• Document numbering starts with the number of the part of the form that it belongs under, followed by a decimal, then a unique number for the document within that part, e.g.:
  • Documents in Part 1 start at "1.1", then "1.2", "1.3", and so on
  • Documents in Part 2 are numbered "2.1", "2.2", "2.3"
  • Documents in Part 3 are numbered "3.1", "3.2", etc.
• No need to list documents twice:
  • If a document was already listed by the other party in Part 1 or Part 2 of their Form F20, then you do not need to list it in your own Form F20
  • If you've already listed a document in one part, do not list it again in another part

Each part of the Form F20 has its own distinct purpose.

Summary of Form F20 Parts

Part Number	Title in the Form	Purpose
Part 1	Documents That Are or Have Been in the Listing Party's Possession or Control and That Could Be Used by Any Party at Trial to Prove or Disprove a Material Fact	Practically speaking, most documents are listed in this part, since documents that can prove or disprove a material fact are the most relevant, and Rule 9-1(1) makes their disclosure mandatory. Listing a document here shows that you recognize that the document itself, and likely other documents similar to it, is materially relevant to an issue raised in the pleadings, and that the document will help a judge decide a material fact. Remember, the disclosure obligations under the Supreme Court Family Rules require that you list all materially relevant documents, including those that do not help your case.
Part 2	Other Documents to Which the Listing Party Intends to Refer at Trial	A party might choose to list a document if they want to preserve the right to use it at trial, even if they do not believe it could directly prove or disprove a material fact. Many parties do not list documents in this part, in which case they insert "Nil" or "None" in the first row.
Part 3	Documents That Relate to a Matter in Question in the Action	If you have disclosed documents beyond those that are relevant to a material fact because the other side demanded them under Rule 9-1(8), you can amend your List of Documents and add the documents here. This part also covers documents a court ordered you to produce (Rule 9‑1(11)). Note: if the documents were demanded under Rule 9-1(7) (and are material ones that you should have listed initially) you will likely be adding those to Part 1, not Part 3. Many parties will not have anything to list in this part, in which case they insert "Nil" or "None" in the first row.
Part 4	Documents for Which Privilege From Production Is Claimed	This is for a special category of documents that are privileged, which means they are not shown to anyone, and you are released from the duty to disclose these to the other party. These still need to be numbered, dated, and described in a manner that allows another party to assess the validity of the claim of privilege (Rule 9-1(4)). In the fourth column you need to state what kind of privilege applies (Rule 9-1(3)). Two main grounds of privilege are usually dealt with here: solicitor-client privilege and litigation privilege. If the document is between you and your lawyer, was intended to be confidential, and relates to seeking or giving legal advice, this falls under solicitor-client privilege and you should write that into the fourth column. This ground of privilege is highly protected by the courts, and less needs to be said about these documents generally (e.g. adding the date, and a description such as "letter from lawyer" may suffice). If litigation privilege is claimed over a document (e.g. an independent financial expert or business valuator's report) then there is more likely to be a question around the document's main purpose, and whether it should be disclosed. A general description of the document, its date, and the parties to a document, is usually required at minimum. Seeking independent legal advice is recommended before deciding to claim privilege.

For each part of the Form F20, a party is required to:

• number each document,
• indicate the date of each document,
• provide a brief description of the document (it is also helpful to include the number of pages of each document),
• indicate whether the document is still in that party’s possession, and
• indicate the date on which the document is being listed (this is helpful when new documents are added and lists are updated throughout the proceeding).

When gathering and considering documents for your Form F20, a good practice is to separate your documents by category. Enter the category of the document as a heading inside the list of documents. Label categories as "A, B, C," etc. Within these categories, list and number the documents chronologically.

Here are examples of some categories and the documents that may be listed within them.

A. Claimant’s income:

1. 2015 to 2024 Income Tax Returns, T1 generals

2. 2015 to 2024 Notices of Assessments

3. 2024 Pay stubs

B. Respondent’s income

1. 2015 to 2024 Income Tax Returns, T1 generals

2. 2015 to 2024 Notices of Assessments

3. 2024 Pay stubs

C. Bank Accounts

1. 2015 to 2024 bank statements for parties’ Joint savings account with ABC Bank, account ending in numbers ***9876

2. 2020 to 2024 bank statements for Claimant’s sole chequing account with XYZ Bank, account ending in numbers ***1234

3. [etc. For each bank account held jointly or in your/other party’s sole name]

D. Credit Cards

1. 2017 to 2024 credit card statements for parties’ joint [Mastercard/Visa/American Express/other] Credit card with ABC Bank, account ending in numbers ***0123

2. [etc. For each credit card, whether held jointly or in your/other party’s sole name]

E. Debts

1. 2019 to 2024 statements for parties’ joint line of credit with XYZ Bank, account ending in numbers ***5678

2. 2020 to 2024 statements for parties’ mortgage ABC Bank, account ending in numbers ***9876

3. [etc. For each credit card, whether held jointly or in your/other party’s sole name]

F. Family home

1. 2020 / Nov / 01, Purchase and sale agreement of family home located at 123 My Home Rd., Vancouver, BC, Y2S 2Y0

2. 2022 to 2024 receipts for renovations made to the Family Home.

G. Vehicles

1. 2019 / Sep 13, Lease documents for 2019 Subaru Outback

2. 2020 to 2024 confirmation of lease payments for 2019 Subaru Outback.

You would add the categories that made sense for your own documents.

Using the above example, if you need to refer to your family home renovation documents in the future, you would refer to them as document "F.2" Below, under “amending a Form F20”, you will see how you can list the documents by category in your Form F20.

3.1.4 What other documents to attach to a Form F8

3.1.5 Filing the Form F8 3.1.6 Serving the Form F8 on the other party

Each party is required to keep their list of documents up-to-date. Rule 9-1(6) states:

(6) If, after a list of documents has been served under this rule,

(a) it comes to the attention of the party serving it that the list is inaccurate or incomplete, or

(b) there comes into the party's possession or control a document that could be used by any party at trial to prove or disprove a material fact or any other document to which the party intends to refer at trial,

the party must promptly amend the list of documents and serve the amended list of documents on the other parties.

Each party is entitled to ask that additional documents be produced if they think that there are documents or categories of documents missing from the list of documents provided by the other party (see Rule 9-1(7) & (8)). The request must be in writing. If the party faced with the request for additional documents does not provide the requested documents (and an amended list of documents listing the additional documents) within 35 days of receiving the request, the party making the request can make an application to the court (see Rule 9-1(9) & (10). This chapter discusses the process for bringing interim applications in the section Interim Applications in Family Matters.

Each party is also entitled to ask for copies of the documents listed on the other party’s list of documents (see Rule 9-1(13)) and to ask to inspect (to view) the originals of the documents listed on the other party’s list of documents (see Rule 9-1(12); also Rule 9-1(14)). If the party wants copies of any of the listed documents, that party is required to pay for the copies in advance of receiving them (see Rule 9-1(13)).

If there are documents that are necessary to prove or disprove a fact at trial but are not in the possession or control of either party, then either party may make an application to the court for the production of copies of the documents by a person or organization or business who is not a party to the family law proceeding. This type of application must be served on the person, organization, or business with the documents (see Rule 9-1(15)). For more information on the process for making interim applications, see Interim Applications in Family Matters, in this chapter.

Documents received in the context of a legal proceeding are confidential and not to be disclosed or used for any purpose beyond the scope of the proceeding (i.e. you can't show them to friends or family or use them in another court proceeding), unless by order of the court or agreement between the parties. This is a serious obligation that each party has in relation to both the other party and to the court. If a party fails to honour this obligation, that party can be found to be in contempt of court.

Examination for discovery

Rule 9-2 of the Supreme Court Family Rules allows each party to a lawsuit to examine the other party under oath about the facts and matters at issue in the court proceeding. This step is called an examination for discovery. Examinations for discovery are not mandatory, but are an important step in the discovery process and are particularly important when the proceeding is going to trial for the following reasons:

• An examination for discovery allows each party to gain detailed information about the other party’s case, including the names of potential witnesses, and to assess the strengths and weaknesses of the other party’s case.
• The evidence of the party being examined is recorded and the party who conducts the examination for discovery may read into the record of the trial the answers given by the opposing party. Answers read into the record in this manner have the same effect as sworn evidence given by the opposing party at the trial.
• As the evidence of each party being examined is recorded, if there are discrepancies or inconsistencies between that party’s evidence at the examination for discovery and that party’s evidence at trial, the discrepancies and inconsistencies can be used against the party at trial or undermine or impeach that party’s credibility.
• If the parties have lawyers and the lawyers have had minimal to no contact with the other party to date, an examination for discovery provides an important opportunity for the lawyer to assess how the other party will present their case at trial.

The examination for discovery of each party is limited to five hours (see Rule 9-2(2) of the Supreme Court Family Rules) unless that party agrees otherwise, and may be conducted anywhere the parties agree. It is often conducted at the office of one of the party’s lawyers, or at the courthouse, or at the office of the court reporter. All that is required is a private room in which the lawyer for one party may ask questions of the opposite party in the presence of the court reporter. The court reporter is not, in any sense, a judge, but a court official who has the power to administer oaths and is authorized to record verbatim evidence.

The ordinary procedure is for both the parties and their lawyers to attend. The court reporter administers the oath or affirmation and then transcribes the questions and answers. At the request of either party (and for a fee), the court reporter binds the transcript into a book which is available for the purposes of the trial.

Because the transcript of the examination for discovery prepared by the court reporter may be used at trial (as that party's evidence, and potentially to undermine the credibility of that party), it is important that the person giving the evidence is fully prepared for the examination for discovery. In addition, while the evidence given at the examination for discovery does not determine the outcome of the court proceeding, it often has a significant impact on settlement negotiations after the examination for discovery. It can also have an impact on the trial itself.

When attending to be examined for discovery, a party must bring all the documents in their possession or control which relate to the court proceeding.

Because the examination for discovery is one of the first opportunities to meet the lawyer of the other party, each party should strive to make a good impression. If you are attending to be examined for discovery you should follow these tips:

• Wear clean, neat, comfortable clothing.
• Treat all persons in the meeting room with respect.
• Consider this an important and formal occasion. Avoid getting chummy with the opposing lawyer. Act professionally, as you would at a job interview.
• Tell the truth—the best questioner cannot touch a witness who is telling the truth.
• Listen carefully to every question in order to hear the entire question and ensure understanding of the question.
• Speak clearly and loudly so that the Court Reporter can hear the answer, including saying “Yes” or “No”, instead of mumbling. The Court Reporter cannot transcribe a head nod or shake.
• Ask for clarification if you do not understand a question—the questioner will rephrase it.
• Do not guess or speculate. If you cannot remember an answer to a question, simply say “I can’t recall” or “I can’t remember”.
• Answer only the question asked, and not volunteer additional information.
• Do not exaggerate or understate the facts. Avoid using the words “never” and “always”.

The examination for discovery is in the nature of a cross-examination. The examining party (or their lawyer) can ask open-ended questions (to obtain as much detail as possible), or ask leading questions in an attempt to obtain favourable admissions.

The lawyer for the party being examined may object to a question asked on the basis that the question is irrelevant to the case, or improper in form, or calls for privileged information. If the party asking the question disagrees that the question is inappropriate, that party can make an application to the court to require the other party to provide an answer. For more information on the process for bringing interim applications, see Interim Applications in Family Matters in this section.

To arrange an examination for discovery, you will need to coordinate available dates with the other party (and their lawyer if any) as well as the court reporting service (as listed in the phone book). Once you have an agreed upon date and place to conduct the examination for discovery, you will need to complete an appointment to examine for discovery (Form F21) and serve it on the other party, along with required witness fee, at least seven days in advance of the date scheduled for the examination for discovery (Rule 9-2 (12)). The Appointment to Examine for Discovery (Form F21) does not need to be filed with the court, but a copy must be provided to the court reporter to confirm the appointment date. Schedule 3 of Appendix C of the Supreme Court Family Rules sets out the fees payable to witnesses. The daily witness fee is currently $20, in addition to the travel costs of the party being examined:

• If the party being examined lives within 200 km by road (including any ferry route), it's $.30 per km each way by road between their residence and the place of the examination (but no payment if the distance is less than 8 km).
• If the party being examined lives more than 200 km away, the minimum return air fare by scheduled airline plus currently $.30 per km each way from their residence to the departure airport and from the arrival airport to the place of the examination.

To prepare for an examination for discovery, whether you are the party being examined or the party conducting the examination, it is a good idea to review the pleadings, the financial statements, and the documents produced by each party to the court proceeding. If you are the party conducting the examination, it is a good idea to prepare an outline of the issues in the court proceeding and the questions you want to ask the other party about each issue. You may want to consult a lawyer about the types of questions you can and should ask, and any areas of concern about the case, including any information you think may be privileged.

After the examination for discovery is completed, you can order a transcript of the questions and answers (of either party) from the court reporting service (for a fee) for use at trial. The court reporting service will provide one original and as many copies as you request (usually one is enough unless there are more parties to the lawsuit than just the two spouses). If you use the transcript at trial, you will provide the original to the judge and use the copy yourself.

Notice to Admit

A Notice to Admit provides an opportunity for each party to obtain from the other party admissions about facts and the authenticity of documents in order to simplify the presentation of evidence at trial and to shorten the time necessary for the trial. In other words, once a fact or the authenticity of a document is admitted, it is no longer a contentious issue at trial. Notices to admit are not mandatory and are not used in every family law court proceeding.

Notices to Admit are governed by Rule 9-6 of the Supreme Court Family Rules. The form to be used is Form F24 and must be served on the other party (at that party’s address of service set out in their Notice of Family Claim or Response to Family Claim). Each fact that is sought to be admitted should be set out in a separate numbered paragraph. In the case of documents whose authenticity are sought to be admitted, each document sought to be admitted should be listed and described in a separate numbered paragraph, and copies of the documents must be attached to the Notice to Admit (Rule 9-6(3)).

The party served with a Notice to Admit then has 14 days from the date of service to respond in writing to the Notice of Admit, and if that party fails to do so, the fact or authenticity of a listed document is deemed to be admitted. If the party served with a Notice to Admit seeks to deny an admission (or otherwise oppose the facts or documents set out in the Notice to Admit) that party must provide to the other party a written statement which:

• specifically denies the truth of a fact or the authenticity of a document,
• sets out in detail the reasons why the party cannot make the admission, or
• states that the refusal to admit the truth of a fact or the authenticity of the document is based upon grounds of privilege or irrelevancy or that the request is otherwise improper and sets out in detail the reasons for the refusal.

(See Rule 9-6(2) of the Supreme Court Family Rules.)

Where a party has unreasonably refused to admit the truth of a fact or the authenticity of a document specified in a Notice to Admit, the court may order the party to pay the costs of the other party in relation to steps taken to prove the fact or the authenticity of the document, or can deprive the party of costs that party would otherwise be entitled to.

Once a party has made an admission (by way of a Notice to Admit or in a pleading), that party cannot withdraw it without the consent of the other party or by court order (see Rule 9-1(5) of the Supreme Court Family Rules). Admissions can be used as evidence at trial or on an application to the court (see Rule 9-1(6) Supreme Court Family Rules).

Interrogatories

Interrogatories are a form of written questions posed by one party to the other party in an effort to obtain information without the fullness and formality of an examination for discovery. As Interrogatories can only be used with the consent of the other party or by court order (see Rule 9-3(1) of the Supreme Court Family Rules), they tend to be used less frequently than other manners of discovery but can be useful to obtain specific information or details such as dates or the sequence of events, account numbers or other particulars, information about a corporation or a business, and the like.

Interrogatories are to be prepared in Form F22 of the Supreme Court Family Rules. If the court orders the Interrogatories be answered or the other party simply agrees to answer them, then the other party has 21 days to deliver their reply to Interrogatories (see Rule 9-3(4) of the Supreme Court Family Rules) and the reply must be in the form of an affidavit. (See How Do I Prepare an Affidavit? in the Helpful Guides & Common Questions part of this resource.) As a result, the party answering the Interrogatories is swearing (or affirming) to the truth of the answers and will need to see a lawyer, a notary public, or a court registry clerk. Interrogatories and replies to Interrogatories are not filed with the court.

A party answering Interrogatories may object to one or more Interrogatories on the basis of privilege or on the grounds that it does not relate to a matter at issue in the court proceeding (see Rule 9-3(6) of the Supreme Court Family Rules). In such circumstances, the responding party should indicate in the responding affidavit that the party objects to a specific interrogatory and the basis for the objection. The responding party may also apply to the court to strike out the interrogatory if they object to it on the grounds that it will not further the object of the Supreme Court Family Rules. When making its decision, the court must consider any offer made by the party to make the admissions sought, to produce documents, or to give oral discovery.

If a court application is made to compel one party to answer Interrogatories, the court may set conditions such as the number or length of Interrogatories or the issues or topics the Interrogatories may cover (see Rule 9-3(3) of the Supreme Court Family Rules).

Pre-trial examination of witnesses

If a party needs information from someone who is not a party to the court proceeding and there is no other way to get the information, that party can apply to the court for an order to allow a pre-trial examination of that witness. Be forewarned that the court may also order that the examining party pay the reasonable lawyer’s costs of the person relating to the court application and the examination. Due to the expense involved in making the court application and paying the witness’s legal fees, in practice this process is rarely used, but it is permissible under Rule 9-4 of the Supreme Court Family Rules. For more information on the process for bringing interim applications, see Interim Applications in Family Matters in this section.

Rule 9-4(3) of the Supreme Court Family Rules requires the party making a court application for a pre-trial examination of a witness to present evidence in the form of an affidavit (see How Do I Prepare an Affidavit?), which sets out:

(a) the matter in question in the family law case to which the applicant believes that the evidence of the proposed witness may be material,

(b) if the proposed witness is an expert retained or specially employed by another party in anticipation of litigation or preparation for trial, that the applicant is unable to obtain facts and opinions on the same subject by other means, and

(c) that the proposed witness

(i) has refused or neglected on request by the applicant to give a responsive statement, either orally or in writing, relating to the witness' knowledge of the matters in question, or

(ii) has given conflicting statements.

The application materials must be served upon the proposed witness, and Part 10 of the Supreme Court Family Rules applies to the witness as if they were a party (see Rule 9-4(4) of the Supreme Court Family Rules).

If the court makes the order requiring a witness to attend a pre-trial examination, the party who obtained the order must serve upon the witness a subpoena in Form F23.

• The subpoena may require the witness to bring to the examination any document in the witness’ possession or control relating to the matters at issue in the court proceeding and any physical object in the witness’ possession or control that the party contemplates introducing as an exhibit at the trial (see Rule 9-4(5) of the Supreme Court Family Rules).
• The subpoena does not need to identify any specific document or category of document, but must identify any object to be produced (see Rule 9-4(5) of the Supreme Court Family Rules).
• The subpoena must be served upon the witness to be examined at least 7 days before the date of the scheduled examination (see Rule 9-4(5) of the Supreme Court Family Rules).

The examination is in the form of cross-examination and the witness may be cross-examined by all parties. The party who obtained the order conducts the first cross-examination followed by the other party/parties to the court proceeding and the first party may conduct a further cross-examination of the witness at the end (see Rule 9-4(8) of the Supreme Court Family Rules). Unless the court otherwise orders, the examination of the witness cannot exceed 3 hours in total as conducted by both/all parties (see Rule 9-4(9) of the Supreme Court Family Rules).

Many of the rules that apply to the examinations for discovery also apply to pre-trial examination of witnesses: Rule 9-2 (11), (15), (17), (18) and (21) to (24) (see Rule 9-4(10) of the Supreme Court Family Rules).

Physical examination & inspection

Rule 9-5 of the Supreme Court Family Rules allows parties to apply to the court for the following additional orders:

• Order for medical examination: The court may order a party to submit to an examination by “a medical practitioner or other qualified person” if the physical or mental condition of the party is in issue in a family law case (see Rule 9-5(1) of Supreme Court Family Rules). The court can also order that the result of the examination be put in writing with copies made available to the parties, and can make orders about who will pay for the examination and report-writing.
• Order for inspection and preservation of property: The court may order the "production, inspection, and preservation of any property" and authorize samples to be taken, experiments to be conducted, or observations to be made about the property.
• Orders for entry on land or building: The court may authorize a person to enter on any land or building for the purpose of an order under Rule 9-5.

So far as is practicable, examinations and inspections ordered under this rule apply to persons residing outside British Columbia (see Rule 9-5(6) of the Supreme Court Family Rules).

This chapter discusses the process for bringing interim applications in the section Interim Applications and Supreme Court Family Law Proceedings.

Resources and links

Legislation

• Supreme Court Act
• Supreme Court Family Rules
• Court Rules Act
• Family Law Act Regulation

Resources

• J.D.G. v J.J.V., 2013 BCSC 1274
• Cunha v Cunha, 1994 CanLII 3195 (BC SC)
• Legal Aid BC's Family LawLINE and duty counsel information page
• Family Law Discovery information page from Legal Education Society's Online Help Guide for BC Supreme Court
• Supreme Court Family Practice Directions
• Supreme Court Administrative Notices
• Supreme Court Trial Scheduling
• BC Assessment website

Links

• Supreme Court website

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Iris Turaglio, 17 December 2024.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.